Electoral Commissioner, State Electoral Office v McCabe

[2003] NSWADTAP 28

Appeal Panel - Internal

CITATION:	Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28
PARTIES:	APPELLANT Electoral Commissioner, State Electoral Office RESPONDENT David McCabe
FILE NUMBER:	039013
HEARING DATES:	13/05/2003
SUBMISSIONS CLOSED:	05/13/2003
DATE OF DECISION:	07/22/2003
DECISION UNDER APPEAL:	McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24
BEFORE:	O'Connor K - DCJ (President); Molony P - Judicial Member; Mapperson K - Member
CATCHWORDS:	access to documents - operation of agencies - Freedom of Information Act - access to documents - operation of agencies - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023264
DATE OF DECISION UNDER APPEAL:	02/05/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Parlimentary Electorates and Elections Act 1912
CASES CITED:	McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24
REPRESENTATION:	APPELLANT S Lloyd, barrister RESPONDENT J Kirk, barrister
ORDERS:	1. The Electoral Commissioner’s appeal is allowed. ; 2. The decision under appeal is set aside.; 3. The Commissioner’s determination to refuse access to the document is affirmed.; 4. Mr McCabe’s appeal in relation to refusal of costs is dismissed. (File No. 039022)

1 There are two appeals. The first is by the Electoral Commissioner (the Commissioner) seeking to have reversed the primary decision of the Tribunal in McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24, relating to an application for review of a determination made under the Freedom of Information Act 1989 (FOIA). The respondent to that appeal is Mr McCabe, the secretary of the Restore the Workers Rights Party (the Party).

2 Mr McCabe is also an appellant against the Tribunal’s secondary decision not to exercise in his favour its circumscribed discretion to award costs found in s 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

3 The parties are agreed that if there is found to be error on the part of the Tribunal in relation to its primary decision then the Appeal Panel should grant leave pursuant to s 113 of the Tribunal Act to deal with the merits (thus avoiding any remitter to the primary Tribunal). It will be seen that we have concluded that the decision is affected by error, and have exercised the discretion to go on and deal with the merits.

4 The FOI request in issue arose in the following circumstances. Mr McCabe, in his capacity as secretary of the Party, applied to the Commissioner to have the Party registered under the Parliamentary Electorates and Elections Act 1912 (PEE Act). To be eligible for registration, a party must have at least 750 members. (See s 66A(1) of the PEE Act.) Mr McCabe provided declarations from more than 750 people that they were members of the Party. Registration of a party has several advantages including entitlement to financial and other benefits. In order to satisfy himself that the party was genuine (see PEE Act, s 66G(2A)) the Commissioner wrote to 300 members, whose names were randomly selected from a batch of 750 member's declaration provided by Mr McCabe. The member's personal details were required to match with those on the electoral roll. The Commissioner also gave Mr McCabe the membership confirmation form, which the Commissioner asked the randomly selected group to complete and return. Mr McCabe sent this to all members, asking those who had been requested to complete it by the Commissioner, to do so and return it to the Commissioner.

5 He has only obtained positive written replies to his enquiries from 198 members and 7 negative replies. Under his procedures he requires positive replies from 75% of those contacted before making a favourable decision. He is short by 27 replies. The claim for registration was rejected.

6 Mr McCabe applied under FOIA for access to the list containing the names of the members approached. Mr McCabe’s motive in wanting the list was explained by the Tribunal at [13-14] of its reasons:

‘13 As at the date of the hearing, the Electoral Commissioner has received positive responses from 198 people and negative responses from seven people. Two letters were returned unclaimed. In total, 93 people to whom the Commissioner has written, have not responded. A further 27 affirmative responses must be received before the Electoral Commissioner is prepared to register the Party.

14 Mr McCabe's evidence was that the financial resources of the Party come from money he has donated. He says that the Party does not have the financial resources to employ a person to travel around NSW seeking confirmation from the 750 scattered members. He says that the only way he will be able to find out whether the remaining 93 members still wish to be members of the Party would be for his secretary to telephone those members individually.’

7 Mr McCabe’s evidence had been that his party was one directed to the needs of working people of a kind who were often itinerant and had limited education. He sees the method of contact he proposes as being most likely to produce a positive outcome.

8 Before the Tribunal the Commissioner relied on three grounds for exempting the document from access: one, that release could reasonably be expected to endanger one or all of them in respect of their life or physical safety (see cl 4(1) (c) of Schedule 1 to FOIA; two, that release could be reasonably expected to prejudice the effectiveness of a method for the conduct of tests and that would be contrary to the public interest (see cl 16(a)(i); three, that release could reasonably be expected to prejudice the attainment of the objects of the tests conducted by the agency and that would be contrary to the public interest (see cl 16(a)(ii). The Tribunal rejected the Commissioner’s case in respect of all three grounds. The Tribunal set aside the Commissioner’s decision. The Commissioner now appeals.

9 Though the notice of appeal put in issue the Tribunal’s decision on all three grounds, at the hearing of the appeal the Commissioner did not actively press the appeal in respect of the first of the three grounds, the claim that release would endanger the life or physical safety of any person. Accordingly the Appeal Panel will concentrate on the appeal as it relates to the cl 16 grounds, and deal briefly with the other at the end of the decision.

The Two Clause 16 Exemptions
10 The reasons which follow concentrate on the arguments put in relation to the interpretation of cl 16(a)(i) and cl 16(a)(ii).

11 Clause 16 provides:

‘ 16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or

(ii) to prejudice the attainment of the objects of any test, examination or audit conducted by an agency, or

. . .

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, and

(b) would, on balance, be contrary to the public interest.’

Objection

12 The Commissioner contended in his notice of appeal:

‘The Tribunal erred in conflating the notion of ‘effectiveness of any method or procedure for the conduct of tests’ in (i) above and the notion of ‘the attainment of the objects of any test’ in (ii) above. In particular it erred by considering that the effectiveness of any procedure can only be ascertained by reference to the objects of the test (at [35]). This led the Tribunal to misconstrue the exemption in (i). The Tribunal, it is submitted, should have found that when the method or procedure for a test is premised on the non-disclosure of information, then the non-disclosure of that information could be reasonably expected to prejudice the effectiveness of the method or procedure.’
13 The Tribunal found that the assessment procedure followed by the Commissioner constituted a ‘test’ within the meaning of sub-para (i). It referred to evidence and continued:
‘35 Tribunal's reasoning and conclusion . The object of the test is to ensure the existence and genuineness of the 750 members who have provided declarations of their membership. The method or procedure for the conduct of the test includes writing to 300 members as well as the further conduct of the Electoral Commissioner outlined above at [28]. The effectiveness of that procedure can only be ascertained by reference to the objects of the test. [Emphasis added]

36 The issue to be determined is whether disclosure of the document in this case could reasonably be expected to prejudice the effectiveness of the procedures or the object of the test. I accept that the effectiveness of the procedures and the object of the test would be prejudiced if a member of the Party pressured a person, who was not a genuine member, into completing a confirmation form. The effectiveness of the procedures or the object of the test would not be prejudiced if a Party member pressured a person to provide a positive response in circumstances where that person is a genuine member of the Party. [Emphasis added in sentences two and three]

37 In this case there is evidence that if the document is disclosed, in all likelihood, one of Mr McCabe's administrative staff will contact the members on the list who have not provided a positive response. The only evidence that the administrative staff may pressure the member into providing a positive response in circumstances where that person is not a genuine member of the Party, is the evidence that other party members have pressured or intimidated their members in the past. Mr McCabe gave uncontroverted evidence of what he has done and what he proposed to do if he was given the names on the list. Nothing he has done or says he proposes to do would prejudice the effectiveness of the procedures or the objects of the test. Although other parties have improperly influenced members, the evidence in this case leads me to draw the inference that the Restore the Workers Rights Party is highly unlikely to engage in such tactics. Consequently I am not satisfied that disclosure could reasonably be expected to prejudice the effectiveness of the method or procedure for the conduct of the test or the attainment of the objects of the test. Given this conclusion, there is no need to consider whether disclosure would, on balance, be contrary to the public interest.

38 While I appreciate the difficulty the agency has in distinguishing between parties who may employ threatening tactics and those who would not, my decision must be based on the evidence in this particular case.’

14 What the Tribunal does in the above passage is deal together with the questions required to be addressed by (i) and (ii). Sub-para (i) seeks to protect ‘any method or procedure’ for the conduct of tests from being prejudiced through access under FOI. Sub-para (ii) seeks to ensure that ‘the attainment of the objects’ of tests is not prejudiced through access under FOI.

15 It would be preferable, we agree, for the two categories of exemption to be considered separately. There is a danger if they are run together for the purpose of analysis that the distinction that exists between them will be missed or the two, to use the expression contained in the notice of appeal will be ‘conflated’.

16 In this case the position of the Commissioner is essentially that he is not required to go on and consider the question of the impact of the disclosure of the list of randomly selected members on the objects of the test if it can show that the use of the method (random selection, confidential response) would be impacted.

17 Counsel for both parties acknowledged that Parliament is assumed to have intended that different provisions are intended to have different meanings, and that an approach should be taken to the construction of cl 16(a)(i) and (ii) which accords them separate operation. Nonetheless counsel for Mr McCabe submitted that there is a significant overlap between grounds (i) and (ii) above (i.e. the cl 16(a)(i) claim and the cl 16(a)(ii) claim). It was reasonable to take into account the same factors whether addressing (i) or (ii).

18 Sub-para (i) deals with the means by which the test is conducted; sub-para (ii) deals with the ends sought to be achieved by the test. The objects of the test in this case, as we see it, comprise an immediate object (the exercise of the statutory discretion) which serves wider objects of great importance to the democratic process in the State – the inclusion of the party above the line on the ballot paper with the benefits that has in maximising its vote and affecting the flow of preferences; and the access that the party is given to electoral funding (if its vote is high enough for that purpose). The Commissioner has been empowered by Parliament to conduct tests to establish whether the party should be registered.

19 In our view the essential point made by the Commissioner is well founded. The inquiry required by sub-para (i) is, first, to identify the method for conducting the test, and, secondly, to ask whether that method would be prejudiced as to its effectiveness by disclosure. If there is a finding that the method’s effectiveness is prejudiced then it is necessary to go on to the public interest question (cl 16(b)).

20 The Tribunal said that the question of prejudice to effectiveness can only be judged by reference to the ultimate purpose or objects served by the test. It may be that that is a relevant factor, but it can not in our view be the only factor. It may be that no inquiry would be needed as to the impact of disclosure on the ultimate purpose of a test in order to form the view that the effectiveness of the method would be compromised or prejudiced by release under FOI. The method might for example be one used by an agency across a range of tests that it conducts. Those tests might have different objects. The real issue for the agency might simply be not to imperil the particular methodology by its disclosure in one context thereby putting at risk its usefulness in other contexts.

21 The Tribunal misdirected itself in adopting an unduly narrow construction, and the point of appeal is made out. We will turn to the merits as they relate to the ground invoking cl 16(a)(i).

22 Here the method being used is a relatively simple one – a confidential sample survey involving a one-to-one response to the Commissioner.

23 It is conceivable that in the process of getting people to sign up to a new political party they may feel pressured to seem genuine in their commitment by the circumstances they found themselves in at the time of signing (for example, the enthusiasm engendered by a meeting or not wishing to be seen not to sign when in the company in friends who are supporters of the initiative). It may be that in the privacy of a one-to-one communication with the Commissioner they may declare themselves not to be genuine members. Alternatively they may choose simply not to respond to the invitation as a way of expressing a lack of full commitment.

24 It is in our view clear that the method presently in issue could be prejudiced by having an applicant for registration made aware of the identity of the people selected in the sample group, or by having contact with them (whether directly or indirectly through his secretary) with the benefit of that knowledge. People who might be about to report adversely might feel pressured to give a positive response. Some might of course be so angered that they might take steps to lodge a negative response. If it became known that the Commissioner had breached the guarantee of confidentiality in this way, other attitude or opinion surveys that his office might propose to conduct (whether in relation to party registration applications or in relation to other matters such as, for example, the adequacy of the operation of polling arrangements or the way casually engaged officers do their work on polling day) might also be compromised.

25 We are satisfied that disclosure of the identity of those selected in the sample could reasonably be expected to the prejudice the effectiveness of the test method of confidential sample survey of attitude, in relation to the question of whether the person polled is a genuine member of a political party seeking registration. Clause 16(a)(i) is established.

26 The agency must also establish that it would, on balance, be contrary to the public interest, for disclosure to occur.

27 Mr McCabe contends that the public interest in ensuring that organisations such as the present one which wish to stand candidates for election and promulgate their policies should not be frustrated unduly in their attempts to gain registration. The democratic objective is, it is said, served by disclosure of the names of the people surveyed. He referred, through counsel, to the benefits of registration such as: having the name of the party on the ballot paper; the ease with which candidates from across the State can be nominated, by a single filing with the Commissioner by the party secretary; being able to refer to the party in how to vote cards handed out on polling day; funding assistance.

28 On the other hand, the Commissioner contends that the wider public interest in the orderly conduct of elections in New South Wales (for example, the need to contain the phenomenon of handfuls of persons registering as political parties thereby producing ‘tablecloth’ sized ballot papers for the Upper House, increasing confusion on polling day; the importance of ensuring that only eligible parties receive funding) is served by according strict confidentiality to the processes adopted by the Commissioner to determine if a group of people seeking registration has met the requirements for party status.

29 We prefer the views of the Commissioner on this matter. We are satisfied that the claim under cl 16(a)(i) and (b) is established.

30 We do not consider it necessary to go on and examine the question of the applicability of cl 16(a)(ii).

Costs Appeal

31 It follows that it is not necessary to deal with Mr McCabe’s appeal against the Tribunal’s decision not to award costs. The Commissioner indicated that in the event of success there was no application for costs either in respect of the primary proceedings or the appeal.

Further Comments

32 The Commissioner, it would seem from the material, does not regard the process as entirely closed. If a further 27 respondents come forward with a positive response then he will register the party. Mr McCabe gives as a possible explanation for the less than 75% response rate might be that the kind of membership that the party has involves a relatively itinerant population, and one therefore that is difficult to track down by means of letter communication. It was said that the party was essentially a rural party with an orientation towards people who might - these are our words - be seen as to some degree marginalised. Mr McCabe (who is also a solicitor) said that the members were signed up from clients and ex-clients of his firm based at Young who were on workers compensation, shearers, and persons described as ‘Aboriginals and working class people in Moree, Walcha and Gunnedah.’ It was also said that many of these people were limited in their ability to read and write.

33 Obviously, these are questions going to the appropriateness of the particular methods chosen by the Commissioner, and do not bear on the issues required to be addressed under FOIA. If the cohort of members is of the kind described by Mr McCabe then it may be that the Commissioner should look at the appropriateness on equity grounds of his present written method of administering the confidential survey. In the nature of the cohort presents a relatively likely explanation of the shortfall in responses in the present case, it may be that the Commissioner should himself consider engaging in the follow up telephone enquiries that Mr McCabe is offering to do.

34 Clause 4 provides:
‘ 4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: …(c) to endanger the life or physical safety of any person.’

35 Counsel for the Commissioner said at hearing that the Commissioner’s original motivation for conducting the survey on a confidential basis was to avoid the prospect of members suffering from threats and intimidation by persons seeking to promote a party. The Tribunal did not find this claim established. In the notice of appeal, the Commissioner challenged the Tribunal’s reasoning process, essentially on the basis that it gave undue weight, to such an extent as to commit an error of law, to evidence that Mr McCabe would not coerce anyone so as to reach the conclusion that no one would. We note that neither in his written submissions or at hearing did counsel for the agency vigorously pursue this alleged error. As the appeal has been successful we will not examine this issue closely.

36 We simply note that it as a very serious matter for an agency to invoke an exemption based on ‘endangerment’. In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies as to the availability of grounds for exemption which involve matters of judgment. The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exemption (see s 61, burden of proof). Often the access applicant will be no position, or a weak position, to produce any evidence in reply to the agency’s opinion. The Tribunal must not simply adopt the agency’s opinion; as seemed in essence to be the point asserted by this ground of appeal. In FOI matters especially, the only ‘evidence’ on a matter of judgment of the present kind may be that provided by the agency. It does not follow that approaches that are found in traditional adversarial litigation (i.e. in the absence of any evidence to the contrary, the trier of fact should ordinarily make findings in terms of the uncontested relevant evidence) should be adopted in the merits review context.

ORDERS

1. The Electoral Commissioner’s appeal is allowed.

2. The decision under appeal is set aside.

3. The Commissioner’s determination to refuse access to the document is affirmed.

4. Mr McCabe’s appeal in relation to refusal of costs is dismissed. (File No. 039022)